Viadhyanathan, Sims and Fair Use

An odd sort of argument has arisen around the posting of Siva Viadhyanathan’s article in the Chronicle of Higher Education. Charles Sims, the lawyer who represented the MPAA et al. in the 2600 suit has suggested that Declan’s posting was tacit support for a position that he says is completely unfounded. In particular, Sims argues that the DMCA is all about access. not fair use - in fact, all the fair use that one had in 1976 (when fair use was enshrined in law - before then it was a construct of case law) is still available.

It’s an interesting point, and is defendable only if you accept a key assumption: the sale of a copyrighted work includes an inferred agreement to access the copyrighted content in strict accordance with the technologies envisioned by the seller of the work at the time of the transaction. This is an interesting extension of the list of exclusive rights of copyright:

Copying (granted 1790);

Distribution (granted 1790);

Derivative works (franted 1870 and 1909);

Public performance (granted 1856 and 1897);

Public display (granted 1976);

Attribution and integrity (granted 1990);

Fixation and trafficking in sound recordings and music videos (granted 1994);

Technological protection measures (granted 1998);

Copyright management information (granted 1998);

From The Illustrated History of Copyright; Edward Samuels; St. Martin’s Press; New York, NY; 2000

By my reading (and, warning, I am “unencumbered by a formal legal education”!), I don’t quite see the right that Sims asserts in this list. I understand the technological protection measures, but I am surprised that this can be essentially turned onto its head, suggesting that the acquisition of a copyrighted good with an embedded protection measure implies that the buyer has agreed only to use specific devices/technologies to access copyrighted works.

On the other hand, I suppose that one could credibly make this argument - after all, Mr. Sims has done so, quite successfully. But, note what it implies - a new limit on creativity has been erected. If we believe Mr. Sims, the government has given copyright holders the right to prescribe the application of technology by others.

A huge leap has happened, if you believe Mr. Sims. The list above is a list of what one can exclusively do if one is the holder of a copyright. Mr. Sims is asserting that the DMCA has added an exclusive right on how one uses copyrighted material. This is a terribly dangerous transition - what is easy for a government or a court to understand, to regulate, to identify. Regulation of how seems to be a toxic notion of control when creativity is at stake. Consider, for example, if it had been against the law to interfere with the motion of a turntable - “scratching” and other roots of hip-hop would have been illegal! Or, suppose the MPAA decided that TVs shouldn’t have hue, tint or contrast control because it changed the image on the screen.

At ILaw this year, Larry Lessig showed those of us who have never bought an eBook how each one comes with a list of what one can and cannot do with an eBook - copy text, print pages, allow the use of a voice synthesis reading program, etc. His lecture on this topic culminated with him showing the list of restrictions on The Future of Ideas - Larry cannot copy, print or “read aloud” his own book! We all laughed - it was an illustration of how preposterous these kind of technological constraints can get.

But, it’s not just preposterous - it is also an incredibly arrogant attitude for a publisher to take. How dare they assert that they have the right to tell me how to use their product! How dare they choose to constrain my ability to do, to use, to create.

And, worse, how can a lawmaker, whose Constitutional imperative is “To promote the Progress of Science and useful Arts,” assert that Progress can, and should be, constrained by the owner of copyrighted content.

The most remarkable part of this article is the response of the RIAA to the fact that record stores are reducing their CD prices to get customers into the store. A Globe chart (not given online) shows that the average suggested retail price of CDs was $21.50 in 1983 (the introduction of the CD), dropping rather steadily to $12.50 in 1990 and trending slowly back up to $14.02 in 2000 (sourced from the RIAA). The fact that local stores are discovering that they need to offer product at $9.99 to get people into stores, however, leads the RIAA to this position:

But Hilary Rosen, chief executive officer of the RIAA, said that it’s unfair to expect record companies to cut costs. She says people who steal music by downloading soundfiles or burning discs illegally are responsible for sales drops.

”In the age of $150 sneakers, $12 movie prices and $40 video games, I’m just unsympathetic,” Rosen says. ”At any price in the $10 to $18 range, CDs are a great value.”

It would be interesting to track the real prices of the products that she cites, particularly if one were to consider the trends in quality and features of those products along with their prices.

But, there’s another feature of her position that screams for consideration - "it’s unfair to expect record companies to cut costs." Really!?! Every other industry looks upon cost-cutting as the standard - a day to day practice. There are plenty of industries where cost saving - continuous improvement - is the centerpiece of operations. Yet the RIAA, confronted with technological challenges that have been commonplace since the invention of the player piano, refuses to acknowledge that cost might have something to do with their declining performance in the face of these challenges. Rather than exploring new business models, it’s all about modifying law and regulations within the industry, and calling for dramatic changes in industries outside of their traditional purview - computer technology.

And worse, they’ve managed to convince a large fraction of the population that their position is reasonable. For anyone who’s read Courtney Does the Math, and looks at [PDF] the implications of her numbers has to ask about the costs of promotion - and wonder, for example, why killing webcasting seems to be the objective of the RIAA.

As far as I can see, it comes down to a simple fact - the record companies are control freaks, pure and simple. Somehow, they have managed (along with the movie industry) to convince us that their monopoly control should be perfect, unassailable by advancing technology and guaranteed by the state. And worse, our government representatives see that their role is to employ the instruments of public policy to maintain their control.

Christopher Allen, an executive at MusicMatch, a company that offers a subscription radio service, answers that question this way: “You can get free coffee at work, but there’s a ton of people going to Starbucks.”

July 29, 2002

I can’t sleep; and now that I’ve started today’s New York Times, it might have been a message. In the words of Charlie Brown, “Augh!!.” Declan also has a big piece on this on CNet which paints a dire picture. Basically, it looks like Sen. Joseph Biden (D-Delaware) may be plotting an end-run around the opponents of the CBDTPA (See S.2395 and amendments at Thomas.)

Although it does get curiouser and curiouser as the day progresses. At 2:00PM I added the LawMeme link below. Now, after working through Donna Wentworth’s bit (via e-mail) I came across this interesting article posted at The Register in April.

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Amy Harmon has a depressing article in today’s Times, not only suggesting that Congress is starting to buy the line of the linkes of Hollings and Berman, but also that Biden’s draft bill that started as a bill updating penalties for counterfeiting via hologram copying is being modified to give the movie industries what they want via a set of backdoor modification. More people to write letters to.TODAY if Declan’s piece is right. (The ZDNet version with Talkbacks) Update: A Slashdot discussion has started up.

Here’s a report from Biden’s office on intellectual property. It not only starts with the usual conflation of the notion of intellectual property and property, but it also seems to swallow, hook-line-and-sinker, the preposterous "losses" due to piracy flung around by the BSA, MPAA and RIAA.

Update: The folks over at LawMeme have a less contentious interpretation of the amended Biden stuff - although they’re also soliciting sharper interpretations from their audience..

The infamous Hiawatha Bray does his usual strange thing in today’s column in the Boston Globe. While ultimately producing an ambivalent conclusion about a controversial subject, he still manages to inject enough inflammatory language to upset just about everyone with a real opinion about Berman-Coble.

July 28, 2002

Two good articles in the New York Times today. One is an interview with Shawn Fanning; the other an op-ed piece on AOL/Time-Warner. Some good observations over at Rolling Stone, and Dan Gillmor really lets it rip. Illiad does too.

…These are discouraging times. In the past several months, the cartel has won battle after battle in courts and legislatures, with pathetic opposition from the one industry most threatened by this trend. With few exceptions, technology companies are turning into lapdogs for Hollywood and its allies.

July 27, 2002

Some more details on the Princeton-Yale lunacy at SFGate. It just gets stranger and stranger.

I find myself wondering if we’ll look back on this past week as the beginning of the end, or just a really awful low point in the annals of internet regulation. To read Doc Searls’ rundown of the week, I can’t tell which way things will go.

A nice article at Wired on the potential horrors of Berman-Coble. And more information on what’s the latest in the Peru-Microsoft game.

A good Foxtrot cartoon today; mod-chipping in Australia gets a boost; Edelman v. ACLU is percolating through the newswires; Wired points out that Berman-Coble protects certain music systems. Doc Searls coins a word: dysnia

Hmmmm - Apparently (at least in The Register’s Thomas Greene’s opinion), it has suddenly dawned on Valenti that Berman’s bill cuts both ways. Personally, I’m afraid that Thomas is wishing for something that isn’t there.

Following up on yesterday’s rant, Thomas Greene has found someone to praise in the face of the US Government’s “steamrolling [of] the rights of citizens to sue” for information released to the government under the revised Freedom of Information Act being crafted for the Homeland Defense initiative.

July 25, 2002

I’m a little calmer today (this morning); although there must have been something going around yesterday. See Larry Lessig’s comments to the Open Source Convention yesterday to see what I mean - he really challenged the community to do something (Dan Gillmor’s blog entry, in particular, expresses the emotion of his talk; Doc Searls’ blog entry gives a different perspective). I see that there’s a collective weblog being tried - take a look.

And, yes, Larry’s already read "Melancholy Elephants." (See yesterday’s notes) And he, like I, suggest it to anyone interested in seeing an example of science fiction coming to life in one’s own time.

"Deep linking" receives a blow in Germany; ICANN is disucussed by Esther Dyson; RealNetworks announces Ogg Vobis support; kuro5hin reacts to the Berman initiative; an interesting take on ubiquitous computing by Bruce Sterling. The NYTimes has an article explaining why you need to look your name up on Google from time to time - plus what the Slashdot’s reference to the "panopticon" means <G> (I guess I’m just illiterate).

Declan’s had a busy day! Here’re his Politech links for the Berman/Coble P2P bill. And Thomas C. Greene isn’t letting up much today either! Matt Loney tells us what he thinks of the new UK copyright law; and Real formally announces Ogg Vobis support.

Note: I’m not sure if Wired.com is the target of a DDoS attack or if they’re just having server problems, but their site has been really difficult to access this week.

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Apparently, the EU rules on database "ownership" extend further than US law into that murky realm where one can effectively copyright data. Consequently, a "deep linking" decision in Germany has generated a lot of concern.

July 24, 2002

This has got to stop! I can’t keep posting depressing news. But Declan McCullagh’s description of the upcoming bill from Berman is just disgusting! At least Bruce Perens has a way to protest. And so does Thomas Greene of The Register.

Looks like Yochai’s paper on commons-based production is coming out soon. BroadbandReport.com has another writeup of the recent DRM workshop at Commerce; and CNet gives Bruce Perens a spot to discuss Real’s Helix and open source.

One could imagine that Dan Gillmor has become a Larry Lessig groupie <G> - or maybe it’s just that he and Doc Searls are blogging the O’Reilly Open Source Conference.

And, completely beside the point, this New York Times article shows that, once again, the best of science fiction writers can look prescient from time to time. (I wonder when (if?) Larry Niven - author of "The Last Days of the Permanent Floating Riot Club" in A Hole In Space, 1974 - will let Rheingold know that he wrote/speculated about this phenomenon - years ago!)

Hmmm - maybe I should point Larry Lessig at "Melancholy Elephants" by Spider Robinson (in By Any Other Name - ISBN:0671319744) as he preps for his fall arguments in Eldred v. Ashcroft <G>!

UNBELIEVABLE! If Declan knows what he’s talking about, this pending bill from Rep. Berman is going to be a total catastrophe!! Talk about a potential for abuse. And, before someone points it out, I know that this particular bill won’t get passed. But the very fact that it gets any kind of serious consideration from people in Congress is just disheartening. It’s evidence that Americans have some kind of fatal attraction for know-nothingism. A deliberate effort not to publicly acknowledge the obvious implications of this kind of legislation is too venal to believe, yet we see increasing evidence of it every day. Update: Politech’s readership are airing their views.

Thomas Greene of The Register has his own interpretation of what the proposed Berman legislation would mean to him.

Bruce Perens plans to describe how to circumvent regional coding of DVD players (thus violating the DMCA) at an upcoming O’Reilly conference on open source. Update: Slashdot’s discussion has finally taken a serious turn.

July 23, 2002

Today’s news is another round of depressing repression; intense defence of a mistaken notion of intellectual property - two groups, the Competitive Enterprise Institute and the Institute for Policy Innovation are cited as arguing “that intellectual property rights should be defended as fiercely as traditional property rights.” *Sigh*

Two excellent links from Donna: a background article on the broadcast flag and a Perspectives piece from Jonathan Zittrain. And The Reg says that ISO is getting ready to kill the JPEG standard.

July 22, 2002

Nice little brouhaha forming around a recent Edison Research study into downloading and CD purchases. Wired.com talks about Brazil’s Re:combo. The New York Times writes about Real throwing down a technological gauntlet.

And, in an article that should warm Charlie Nesson’s heart, the Times points out that maybe commerce isn’t the rationale for the Internet, after all. Dan Gillmor seems to be ready to give Palladium a chance?

The EFF has letters from Tauzin and Hollings asking FCC Chairman Powell to implement broadcast flags in digital transmissions without having to deal with that messy legislation stuff. (From the EFF’s Consensus at Lawyerpoint - entry 1,entry 2 blog)

“When we started this, it was more like a project for music and against copyright restraints — we think that the artist should be the owner and the decision maker about what he’d like to do with his intellectual production, not the labels or media companies,” says Haidée Lima, photographer and designer. “But actually, Re:combo has become more like a solid initiative related to different kinds of content, including Web art, digital video and software.”

July 19, 2002

Another late start on the day, so this entry is probably going to change substantially over the day.

Robert Cringely’s column this week concludes that Microsoft is too incompetent, and too threatened by Linux, to really pursue Palladium. The Register picks up a Newsforge report on the DRM workshop; and the writer also posted an opinion piece there.

New stuff on the Peruvian open source legislation. And the first of the radio-paired webcasters goes off the "air."

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Robert Cringely points out some serious inconsistencies in the current Palladium concept, leading him to guess that Microsoft won’t do any better with Palladium than they did with Windows 1.0, Bob, etc. Maybe so, but now that the meme has been created, I’m not sure that the copyright lobby will let it die.

While prepping for my curent Rotisserie round for ILaw, I came across a series of comments at Advogato on the current status of the Peruvian legislation that could mandate open source in government offices.

July 18, 2002

Looks like the DRM Workshop was a little more disruptive than it needed to be - a great eye-witness report on kuro5hin. And The Register targets RangerOnline. Wired has a piece on the Zittrain/Edelman Saudi Arabia study. Now the RIAA wants a “broadcast flag” for web radio now, too!! (Weren’t the implications of capturing streams already embedded in the royalty calculation?) Hmm- now JPEGs are not free of licensing requirements?

And a shocking interview with Alan McGlade, CEO of MusicNet. While the IFPI takes on Chinese file sharing portals. And is Time-Warner going to beat ‘em, or join ‘em?

Getting music for free on the Internet is still a very easy thing to do. How do you compete?

Well, I don’t think you compete, but you do create a service that has its own value. And I always point back to my experience in the cable television business. I remember reporters writing, ‘Cable television as a business will totally fail because no one will ever pay for TV–it just won’t happen; it’s not realistic to think people will pay for TV because TV’s free.’ And in the early days, let’s face it, everybody pirated cable. I didn’t know anybody who actually paid for it. They all sort of snuck up poles at night and ran it into their house. And there wasn’t very sophisticated encryption, so it was relatively easy to do.

And over time, two things happened. First, the quality got better. It became more convenient. And at the same time, there were defensive measures, too. The encryption became more sophisticated. And now there are still probably pirates, but it’s really been marginalized. Most people when they move into a house will hook up cable and pay for it, right?

Hmm - aside from the stupidity of the parallel, I always thought the success of cable came from the fact that cable supplied something that you couldn’t get for free (Sopranos, CNN, cleaner signal, etc.) - but I’m not a professional. I guess that’s why he gets the big bucks.

July 17, 2002

Got a late start on the day. Surprisingly, my trolling hasn’t found a lot, but what there is is pretty interesting. And I continue to make progress on generating a b2 version of this weblog.

Berkman ILaw Fallout: I thought I would have posted my "I Week After ILaw" thoughts by now, but I just haven’t quite put it together right. The first of the followup H2O/Rotisserie discussions has just wound up, but I think I learned more about the limitations of the beta site than anything else. The next cycle should be interesting, though. It’s focused on the Microsoft reaction to the pending legislation to require that Peru only employ Open Source software - and the extraordinarily perceptive response by one of the legislators to a classic Microsoft FUD letter campaign. Should be fun.

Doc Searls has a provocative article in Linux Journal today on webcasting; radio stations are now arguing that their simultaneous webcasting wasn’t supposed to make them liable for the new royalties; and a new Microsoft whitepaper on Palladium shows some more backpedaling on the DRM aspects of the technology.

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Doc Searls’s latest Linux Journal column asks why, in spite of the royalty schedule, there are still so many webcasters operating? A great question, with some interesting interpretations - and good links to follow for more.

July 16, 2002

A busy morning in the news. Apple’s release of QuickTime 6 means that the MPEG-4 licensing brouhaha has been settled. ElcomSoft posts problems with Adobe’s eBook library scheme. The Library Journal has an interview with L. Lessig.

And the House wants life sentences for hacking, preferably prosecuted using evidence collected following a relaxing of wiretapping restrictions. The AP Wire story at Wired.com is a little more detailed.

July 15, 2002

Well, after a weekend of hacking b2, I think there’s a good chance that I’ll try to convert this weblog over to it. In particular, the XML-RPC hooks are pretty attractive. On the downside, the b2 code is still pretty spaghetti-like, and the CSS is impenetrable to me, so I can’t get the format right yet - and, of course, the internal date format is different. But I should be able to make the change soon….

The NYT has a strange article on Bruce Springsteen; and Hactivismo seems to have gotten some code out. CNet News has a lengthy article on the record industry’s plans (under consideration) to prosecute file sharers directly. ZDNet give a small rundown of the firms supplying technologies to “mess up” P2P file sharing. And a Siva Vaidhyanathan essay is up. And the technology industry makes their first moves to head off Sen Hollings, Rep. Bermand and the CBDTPA

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The New York Times has an article on Bruce Springsteen’s success in limiting Internet piracy of his upcoming album. On one hand, the article seems to congratulate him on his success in avoiding the problem that Eminem had with his latest release. But, the article also points out that his success may actually damage sales of the CD when it is released, particularly among the “younger demographic.” Does this imply that the Times (or some of the music industry) is beginning to accept the notion that the Internet provides a positive benefit through file sharing?

Hactivismo has gotten some Reuters attention with their various new tools to promote communication on an increasingly monitored and censored internet.

Between 1995 and 1998, as copyright has been discussed in global and national organisations, Jack Valenti and his cohorts have actually abandoned copyright. They decided copyright was no longer relevant or optimum for the business. They have convinced the World Intellectual Property Organisation and the U.S. Congress to essentially scrap copyright, in favour of technological regulation. Yet they still summon the gumption to defend the ethics of copyright adherence. They want to have it both ways. They want to abandon the democratic safeguards of copyright, such as fair use and a rich public domain – yet they still want the public to romantically embrace the prohibitions embodied in copyright. And frankly, we’re having none of it. The fact that there were 1.7 million Napster users is proof of this.

Industry bigwig agree that they can help Hollywood in some respects, but they won’t kill P2P just to make them happy - or so it seems.

July 14, 2002

This’ll be a short one today. I really need to get some *other* writing done today. But an article at SiliconValley.com is too interesting not to post.

And, if I do get the time, I want to work on the look of this weblog. I’ve finally identified what I don’t like about this tool, so I may be porting everything over to something else - b2 has caught my eye over the past couple of days, and if I can get past the overly pretentious artsy look of the default styles, I may be making the change sooner rather than later.

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SiliconValley.com has a very interesting article about Earthlink’s plans to mimic the success that AOL Broadband has had getting customers by offering special entertainment (read, music) packages.

July 13, 2002

MSNBC documents the rise in MPAA attacks on file sharing, and the LA Times gives some perspective on Michael Jackson’s attack on Sony, notable for the detailed discussion of recording contracts and promotion costs. Jamie Kellner’s back out there scaring people. Robert Cringeley still isn’t buying the latest Palladium spin. And Homer Simpson recommends buying a multi-regional DVD player!

Late night additions from Slashdot: Harvey Reid raises some interesting issues about artist representation in the CARP webcasting royalty dispute. And there are rumors about RoadRunner blocking KaZaa ports

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MSNBC gives thorough coverage of the MPAA’s current strategies to curb movie file sharing - sniffing out sharers and getting ISPs to order them to stop or lose their service. The Iowa University story is particularly notable, as is the indication that the companies are going after individuals. Slashdot discussion

Michael Jackson’s attack on Sony gets a detailed look in the LA Times [registration required] (also some seediness in the Jackson camp). What is particularly notable are the financial details on promotion costs in the industry today.

July 12, 2002

Ugh - the Berman Coble bill is starting to take enough shape that people are commenting [now, including Slashdot] and it looks pretty awful - even with a sop to the webcasters. At least Illiad can keep a sense of humor. Wired has a new Palladium spin article - this is going to go on for quite a while….